Athenian Democracy: Legislation

Athenians in the 4th century were governed by laws (nomoi or nomos, , in the singular) and
decrees (psephismata, or psephisma, , in the singular). Decrees were passed by a vote of
the Assembly, of the Council, or both. Laws came into being by a more complicated process.
Laws took precedence over Decrees. Anyone who proposed a decree in the Assembly that
contradicted an existing law was subject to prosecution on a charge of Illegal Proposal (graphe
paranomon, ). Laws were passed through a process called nomothesia
() or legislation. Each year the Assembly met to discuss the current body of laws.
Any citizen could propose a change in the laws, but could only propose the repeal of a law if he
suggested another law to replace the repealed law. If the Assembly decided to change the laws, a
board of Nomothetai or legislators was selected to review and revise the laws. The process
of legislation was like a trial, with advocates speaking in defense of the existing laws, and others
speaking against the existing laws. The Nomothetai would vote on changes, and any changes that
passed were published on inscriptions near the statues of the Eponymous Heroes and read aloud
at the next meeting of the Assembly. The Nomothetai also undertook an annual review of all
existing laws, to make sure that none contradicted others, and that none were redundant.
Read about the evidence
Xenophon (Xen. Hell.).
Aeschines (Aeschin. 1).
Aristotle (Aristot. Pol.).
Demosthenes (Dem. 23).
Plot on a Map
Athens.
To understand legislation under the Athenian democracy, it is necessary to understand some
terms. The Athenians of the 5th century BCE seem to have used two words interchangeably to
refer to what we call a law, nomos and psephisma. In the 4th century these words had two
distinct meanings: a nomos was a law, while a psephisma was a decree. For the 5th century
usage, we have the historian Xenophon and his account of a speech that Euryptolemus gave
before the Assembly in 406. The speaker tells his audience that, in a particular case, either the
psephisma of Kannonus applies (Xen. Hell. 1.7.20), or the psephisma regarding temple-robbers
and traitors (Xen. Hell. 1.7.21); he then refers to both of these psephismata as nomoi (the
plural form of nomos) (Xen. Hell. 1.7.22). So it would seem that these two terms were moreor-less equivalent. In the 4th century, however, these two terms clearly referred to two different
things: nomoi were laws enacted through a special process of legislation, while psephismata
were decrees passed by a vote of the Assembly. The orator Aeschines in one of his speeches
asks, rhetorically, why the laws (nomoi) are good, but the decrees of the Assembly (psephismata)
are bad (Aeschin. 1.177). The philosopher Aristotle makes a theoretical distinction between laws
and decrees, noting that in certain kinds of democracy the laws rule, but in other kinds of
democracies decrees can override laws (Aristot. Pol. 1292a). Athens was the former kind of
democracy, according to Demosthenes, who quotes a principle of Athenian governance, that No
decree, either of the Council or the Assembly shall have more authority than a law (Dem.
23.87).

Read about the evidence

Aeschines (Aeschin. 3).
Demosthenes (Dem. 23).
On the other hand, the laws could determine what sorts of decrees the Assembly could pass, such
as a law that allows the Assembly to pass a decree honoring a citizen, but that limits the
circumstances of such an honor (Aeschin. 3.36). The courts could nullify a decree, based on the
laws (Dem. 23.96). When inscribed on stone for the permanent record, decrees begin with the
formula, It was decided by the People, or, It was decided by the Council and the People (IG
II2 206 4-5, IG II2 206 28-30; IG II2 237.5; IG II2 237 31); a law began with the formula, It was
decided by the Lawgivers (SEG 12 87.607).
Read about the evidence
Demosthenes (Dem. 23).
The Athenians had no consitution such as the United States has, a body of laws that
fundamentally define the state. Some laws, however, included additional clauses that made it
very difficult to change or revoke the law. One such clause is quoted at Dem. 23.62:
Whosoever, whether magistrate or private citizen, shall cause this ordinance to be frustrated, or
shall alter the same, shall be disfranchised with his children and his property (Dem. 23.62).
Read about the evidence
Andocides (Andoc. 1).
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Athens.
A law included as a quotation in a speech by the orator Andocides says, In no circumstances
shall magistrates enforce a law which has not been inscribed. No decree, whether of the Council
or Assembly, shall override a law. No law shall be directed against an individual without
applying to all citizens alike, unless an Assembly of six thousand so resolve by secret ballot
(Andoc. 1.87). This establishes three important principles of Athenian legislation: (in order from
last to first) that except under very special circumstances, the laws of Athens were to apply to all
citizens equally; that the laws (nomoi) had more authority than the decrees (psephismata) of the
Assembly or Council; and finally that only the written laws were valid.
Read about the evidence
Plutarch (Plut. Sol.).
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Athens.
According to Plutarch, when Solon revised the laws of Athens in the 6th century BCE, he wrote
the new laws on wooden tablets (Plut. Sol. 25.1). By inscribing laws, either on wood or in stone,
and setting them in a public place, knowledge of the laws was made available to all citizens,
rather than to a small elite.

The procedures for making new laws or revising existing laws was complicated, and seems to
have been intended to make the process as democratic as possible, and to prevent any hasty or
poorly considered changes to the laws.
Read about the evidence
Demosthenes (Dem. 24).
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Athens.
Demosthenes describes process of legislation in detail in his speech prosecuting Timocrates
(Dem. 24). He reminds the jurors that, In our laws at present in force, men of Athens, every
condition that must be observed when new statutes are to be enacted is laid down clearly and
with precision. First of all, there is a prescribed time for legislation; but even at the proper time a
man is not permitted to propose his law just as he pleases. He is directed, in the first place, to put
it in writing and post it in front of the statues of the Eponymous Heroes for everyone to see. Then
it is ordained that the law must be of universal application, and also that laws of contrary purpose
must be repealed; and there are other directions with which I do not think I need trouble you
now (Dem. 24.17-18).
Read about the evidence
Demosthenes (Dem. 24).
While any citizen could suggest changes to the laws, laws were not passed by the Assembly or
the Council, as decrees were, but were passed by a rather prolonged process involving the
Lawgivers, the nomothetae (the singular form is nomothete). Panels of Nomothetae were
formed for the purposes of creating new laws and reviewing existing laws; the Nomothetae were
drawn from Athenians who had sworn the dikastic oath, the oath that jurors swore before
entering a courtroom (Dem. 24.27; a passage in Demosthenes, Dem. 24.149-151, purports to be
the text of that oath). So these Nomothetae were ordinary citizens assigned the task of creating
and revising the laws.
Read about the evidence
Aristotle (Aristot. Ath. Pol.).
Demosthenes (Dem. 24).
Aeschines (Aeschin. 3).
These Nomothetae would get together and conduct legislation under three circumstances: if the
Assembly called for revisions to the laws, if an individual Athenian proposed a change in the
laws, and if the six Archons called the Thesmothetae (see Aristot. Ath. Pol. 55.1) undertook a
scrutiny of the laws (respectively: Dem. 24.20; Dem. 24.33; Aeschin. 3.38).
Read about the evidence
Demosthenes (Dem. 24).

At the first meeting of the Assembly for the year, in the month of Hekatombaion, the Athenians
held votes on the whole body of laws (Dem. 24.20; see Dem. 24.23 where the month of
Hekatombaion is specified). This is how Demosthenes describes the process:
Read about the evidence
Demosthenes (Dem. 24).
In the first presidency and on the eleventh day thereof, in the Assembly, the Herald having read
prayers, a vote shall be taken on the laws, to wit, first upon laws respecting the Council, and
secondly upon general statutes, and then upon statutes enacted for the nine Archons, and then
upon laws affecting other authorities. Those who are content with the laws respecting the
Council shall hold up their hands first, and then those who are not content; and in like manner in
respect of general statutes. All voting upon laws shall be in accordance with laws already in
force (Dem. 24.20).
Read about the evidence
Demosthenes (Dem. 24).
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Athens.
This passage tells us several things. First, it suggests that the laws of Athens were divided into
several categories. There were laws concerning the Council; this presumably included laws
governing the Nomothetae and the procedure for legislation itself, since it was the Council that
appointed the panels of Nomothetae (Dem. 24.27; Dem. 24.47-48). There were laws common
to all Athenians. There were laws having to do with the nine Archons. And there were laws
having to do with other authorities. This passage also tells us that the Assembly voted on the
existing laws by a show of hands (Dem. 24.20).
Read about the evidence
Demosthenes (Dem. 24).
Demosthenes continues his description of the annual review: If any law already in force be
rejected on show of hands, the presidents [the Prytaneis described above in the discussion of
the Council] in whose term of office the voting takes place shall appoint the last of the three
meetings of the Assembly for the consideration of laws so rejected. The commissioners [the
Proedroi] who preside by lot at the Assembly are required, immediately after religious
observances, to put the question respecting the sessions of the Nomothetae, and respecting the
fund from which their fees are to be paid. The Nomothetae shall consist of persons who have
taken the judicial oath (Dem. 24.21).
Read about the evidence
Demosthenes (Dem. 24).
Before this meeting of the Assembly, when the Athenians voted on the existing laws, anyone
who wanted to change the laws was supposed to make public specific proposals for new laws:

Before the meeting of the Assembly any Athenian citizen who wishes shall write down the laws
proposed by him and exhibit the same in front of the Eponymous Heroes, to the end that the
People may vote on the question of the time allowed to the Nomothetae with due regard to the
total number of laws proposed. Whosoever proposes a new statute shall write it on a white board
and exhibit it in front of the statues of the Eponymous Heroes on every day until the meeting of
the Assembly (Dem. 24.23).
Read about the evidence
Demosthenes (Dem. 20).
Demosthenes (Dem. 24).
Aeschines (Aeschin. 3).
This must have meant that the vote on the existing laws was equivalent to a vote on the proposed
changes. If the citizens liked the suggestions posted beforehand, they could vote against the
existing laws, thus starting a process of legislation. If the citizens did not like the posted
suggestions, they would vote in favor of the existing laws. Requiring proposed changes before
the meeting would allow the Assembly to make an informed decision regarding how long the
Nomothetae should take to conduct their business (see also Dem. 20.94, Dem. 24.36; Aeschin.
3.39).
Read about the evidence
Demosthenes (Dem. 24).
Demosthenes says, elsewhere in his speech against Timocrates, that it was lawful for any citizen
to propose changing an existing law, but only if he suggested a new law to take its place (Dem.
24.33).
Read about the evidence
Demosthenes (Dem. 24).
The Assembly, at this first meeting of the year (on the 11th day of the month Hekatombaion),
would also choose five citizens to speak in defence of laws proposed for repeal before the
Nomothetae (Dem. 24.23). This suggests that the process of legislation was very much like a
trial in a courtroom, with some people prosecuting the existing laws (and advocating new
laws), and others defending the existing laws (Dem. 24.23, Dem. 24.36).
Read about the evidence
Demosthenes (Dem. 21).
After this first meeting of the Assembly for the year, if the voting determined that the laws
should be reviewed and possibly changed, there was a delay, presumably to let people consider
matters. No further action happened at the next meeting of the Assembly in that month, but at the
third meeting, the Assembly decided how long the Nomothetae should spend legislating, and
details of their pay (Dem. 21.24).

Read about the evidence

Demosthenes (Dem. 24).
The Nomothetae were not chosen until the actual day assigned for legislation; on the morning of
that day they were chosen by lot from those who had sworn the Heliastic oath that all jurors
swore (Dem. 24.27). A board of nomothetae could be huge: Demosthenes reports that in 354/3
BCE, Timocrates passed in the Assembly a decree setting up a board of 1001 Nomothetae, and
ordering the Council to assist them in their work (Dem. 24.27).
Read about the evidence
Demosthenes (Dem. 24).
The meeting of the Nomothetae was conducted by Proedroi (Dem. 24.33). The meeting was
conducted like a trial, with advocates speaking in favor of the existing laws (Dem. 24.23), and
others speaking in favor of changing the laws (Dem. 24.36). When both parties had spoken, the
Nomothetae voted by show of hands (Dem. 24.33).
Read about the evidence
Demosthenes (Dem. 20).
Any new laws proposed by the Nomothetae were published near the statues of the Eponymous
Heroes and were also read aloud to the next meeting of the Assembly (Dem. 20.94).
Read about the evidence
Demosthenes (Dem. 24).
Aeschines (Aeschin. 3).
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Athens.
In addition to this regularly scheduled, annual, opportunity for legislation, there were other ways
of initiation the process of making changes to the laws of Athens. Any citizen could, at any time,
propose a change in the laws (Dem. 24.33). The Archons, specifically the Thesmothetae, were
also charged with making an annual review of the existing laws and, if they found contradictory
laws or redundant laws, they could arrange for a board of Nomothetae to change the laws
(Aeschin. 3.38).
Read about the evidence
Demosthenes (Dem. 20).
Demosthenes (Dem. 24).
Demosthenes (Dem. 3).
Aeschines (Aeschin. 3).
In the case of an individual citizen who wanted to change the laws, he could not propose
repealing a law without suggesting a new law to take its place (Dem. 24.33; Dem. 20.89-94;

Dem. 24.21). The Assembly would decide whether or not the proposal had sufficient merit to be
brought before the Nomothetae (Dem. 24.21; Dem. 3.10-13; Aeschin. 3.39).
Read about the evidence
Aeschines (Aeschin. 3).
Demosthenes (Dem. 24).
Aristotle (Aristot. Ath. Pol.).
The Council had to be involved, too, because it was the Council that set the agenda for meetings
of the Assembly. So once a citizen had posted a proposal for new legislation, the Council had to
put the issue on the agenda for a meeting of the Assembly; this was done by means of a
Preliminary Decree, or probouleuma (Dem. 24.27; Dem. 24.48; Aeschin. 3.39). Dem. 24.27
contains a decree that orders the Council to cooperate in the legislative process in the matter of
convening the Nomothetae, which may mean only that the Council was to ensure that the
business appeared on the agenda for the Assembly. The Council did, however, also have a
special legislative secretary, who made copies of all laws, and attended all meetings of the
Council; this suggests that the Council discussed proposals for legislation before sending them
on to the Assembly (Aristot. Ath. Pol. 54.4).
Read about the evidence
Andocides (Andoc. 1).
Since laws, passed by the Nomothetae, were more important than decrees of the Council or
Assembly (Andoc. 1.87), what happened when a decree contradicted a law? Or, what happened
when someone proposed a law in a way that violated the laws governing legislation?
Read about the evidence
Aristotle (Aristot. Ath. Pol.).
Demosthenes (Dem. 24).
A graphe paranomon, or prosecution for having proposed an unlawful decree was the means
by which the Athenians ensured the sovreignty of the laws; any such charge would be tried
before the Peoples Court (Aristot. Ath. Pol. 59.2; Dem. 24.33).
Read about the evidence
Demosthenes (Dem. 24).
Demosthenes speech against Timocrates focuses on just such a charge; the prosecution claims
that Timocrates introduced a new law that contradicted an old law (Dem. 24.33). That doing so
was illegal runs contrary to the assumption in American law that newer legislation takes
precedence over older laws.
Read about the evidence
Demosthenes (Dem. 24).

Demosthenes actually claims that Timocrates proposal was illegal for several reasons. First, it
contradicted already existing laws (Dem. 24.33). Second, the proposal had not been published by
the statues of the Eponymous Heroes (Dem. 24.18). Third, he did not allow the Council to
consider the law before referring it to the Assembly (Dem. 24.26). Finally, he did not follow the
lawful schedule, which would have meant proposing a new law at one meeting of the Assembly,
taking no action at the next meeting, and at the third meeting voting on whether or not to
convene the Nomothetae (Dem. 24.21); Timocrates, it is alleged, proposed his law at one
meeting of the Assembly and moved that it be handed over to the Nomothetae on the very next
day (Dem. 24.28).
Read about the evidence
Demosthenes (Dem. 20).
Demosthenes speech against Leptines (Dem. 20) is another example of a graphe paranomon.
Here, Demosthenes claims that Leptines arranged for the Nomothetae to pass a law without
repealing any contrary laws (Dem. 20.89; Dem. 20.96), publishing the proposal beforehand, or
allowing the Assembly to consider the matter before sending it to the Nomothetae (Dem. 20.93).
Read about the evidence
Demosthenes (Dem. 18).
Demosthenes himself was once charged with improperly suggesting the emendation of a law
governing the maintenance of warships (Dem. 18.105).
Read about the evidence
Aristotle (Aristot. Pol.).
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Athens.
Aristotle criticizes direct democracy on the grounds that in democracy decrees have more
authority than laws (Aristot. Pol. 1297a4-7). But this criticism does not seem to apply to the
democracy of 4th century Athens.
Read about the evidence
Aristotle (Aristot. Ath. Pol.).
Demosthenes (Dem. 24).
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Athens.
We find a more apt criticism in Aristotles Constitution of the Athenians (Aristot. Ath. Pol.),
which says that in Athens everything is decided by decrees and lawcourts (Aristot. Ath. Pol.
41.2); since the legislators, the Nomothetae, were chosen from the same pool as potential jurors,
and swore the same oaths as jurors (Dem. 24.27; Dem. 24.149-151), this comment seems fairly
accurate. Whether or not we should see this fact as a bad thing is, of course, a matter of opinion.

Athenian Democracy: the Peoples Court

Of almost equal importance to the Assembly and Council, and probably of greater importance (if
not greater prestige) than the Areopagus was the Peoples Court, the Heliaea and other courts
where juries of citizens would listen to cases, would vote on the guilt or innocence of their fellow
citizens, and vote on punishments for those found guilty.
Since Athenian law is the subject of this discussion series, the present introduction to Athenian
democracy will not describe the lawcourts in as much detail as it has given to the Assembly and
Council.
Read about the evidence
Aristotle (Aristot. Ath. Pol.).
Athenians who served on juries received one-half drachma a day, or three obols, for their service
(Aristot. Ath. Pol. 62.2). Payment for service was a democratic innovation, of course, because it
allowed the poorer citizens to participate in the governance of their city. There was no property
requirement for service; any citizen who did not owe any debts to the treasury, was at least thirty
years old, and had not lost his citizenship through any legal action could serve as a juror (Aristot.
Ath. Pol. 63.3).
Read about the evidence
Aristotle (Aristot. Ath. Pol.).
Aristotles description of the Athenian lawcourts and the juries that served on them focuses on
the elaborate systems that seem to have existed to thwart attempts to bribe juries (this description
starts at Aristot. Ath. Pol. 63.1). These anti-bribery measures seem to have focused on making
every aspect of jury selection and allocation among the various courts as unpredictable as
possible. Jurors would be selected, randomly, from the pool of people willing to serve. The
would be divided into groups, one group for every active courtroom, randomly and at the last
minute. The individual groups would be assigned to individual courtrooms randomly and at the
last minute. And there were elaborate checks to ensure that only authorized jurors entered each
courtroom.
Since the lawcourts were charged with hearing, not only cases of criminal and civil matters, but
appeals on the part of citizens who were unsatisfied with rulings by the Council or Assembly,
this elaborate effort to ensure that the juries were truly honest embodiments of the Demos makes
sense. The courts were the ultimate guarantor of democratic rule, and so the juries that ruled
those courts had to be as democratic as possible.
Read about the evidence
Aristotle (Aristot. Ath. Pol.).
Timekeeping was also important during the course of trials, to ensure that the plaintiff and the
defendant had equal time to speak. Aristotle describes the water-clock (klepsydra) that measured

the time for each sides speeches. One of the jurors, appointed by lot, poured water into a large
jar from which the water ran out in a steady stream; when the jar was empty, the speakers time
was up. The amount of water poured into the clock varied according to the magnitude of issue at
stake. For suits involving sums of money up to 2000 drachmas, each side got to speak for seven
measures of water, for suites between 2000 and 5000 drachmas, nine measures of water, and for
suits of over 5000 drachmas, ten measures. For cases in which the defendant stood to lose all of
his property, his citizenship, or his life, the whole dayeleven measures of waterwas given
over to the trial. (See Aristot. Ath. Pol. 67).
Read about the evidence
Aristotle (Aristot. Ath. Pol.).
Juries varied in size from 501 jurors in lesser cases, up to 1500 for the most important matters
(Aristot. Ath. Pol. 68.1). Decisions did not have to be unanimous; after both sides in the case had
given one or two speeches, the jurors voted by dropping ballots into two jars. Each juror had two
ballots, one representing the plaintiff and the other representing the defendant. One after another,
the jurors inserted their ballots into two urns. The bronze urn was for the vote that counted; the
wooden urn was for discarding the unused ballot. As each juror voted, he was given a token
which he could redeem for his jurors fee of 3 obols (one-half a drachma). (See Aristot. Ath. Pol.
68). After the voting, the courtroom attendants emptied the bronze urn in full view of both parties
to the suit and counted the ballots. Whichever side received the most votes won (Aristot. Ath.
Pol. 69).
Read about the evidence
Demosthenes (Dem. 19).
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Athens.
While the Archons were responsible for ensuring the proper running of the Athenian courts, they
did not serve as judges. In fact, there was no one in an Athenian courtroom who was a
recognized legal authority, except for the several hundred (at least) jurors chosen from the
Demos generally. Plaintiffs and defendants, at least those with the laws of Athens on their side,
had to rely on the citizens knowledge of the laws. In a speech before an Athenian jury, the orator
Demosthenes reminded them that, You have sworn to give a verdict according to the laws, and
to the decrees of the People and of the Council of Five Hundred (Dem. 19.179; note that he
mentions the laws before the decrees).
Read about the evidence
Demosthenes (Dem. 20).
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Athens.
But with no presiding judge, plaintiffs and defendant also had to rely on the jurors justmindedness (or susceptibility to rhetoric), especially when the law was obscure or non-existant.

During a different trial from the one just mentioned, Demosthenes reminded another Athenian
jury that, Again, men of Athens, you must also consider well and carefully the fact that you
have come into court today, sworn to give your verdict according to the laws and where there
are no statutes to guide you, you are sworn to decide according to the best of your judgement
(Dem. 20.118). So in the absence of clear laws, jurors were free to vote according to unwritten
laws, or their own understanding of justice (or their own prejudices).
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